Pursuing Gault

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PURSUING GAULT

David S. Tanenhaus and Eric C. Nystrom*

I join your magnificent opinion in the above case. It will be known as the Magna Carta for juveniles. —Chief Justice Earl Warren to Justice Abe Fortas, March 17, 1967.1 Imagine how delighted Abe Fortas must have been to receive this con- gratulatory memo from the “Super Chief.”2 Fortas had spent five months draft- ing the majority opinion for In re Gault.3 In 1964, Judge Robert E. McGhee had committed fifteen-year-old Gerald Gault, who had been accused of making an obscene phone call, to serve up to six years at the Arizona State Reformatory for Boys.4 This constituted a potential six-year sentence for allegedly uttering lewd suggestions into a telephone.5 Under Arizona law, for the same offense, an adult could have been sentenced to no more than sixty days in jail and or- dered to pay a $50 fine.6 At issue in Gault was whether the Fourteenth Amendment’s due process clause guaranteed constitutional rights to children in juvenile court proceedings.7 Although every justice, except for Potter Stewart, agreed that children in juvenile court should have the right to timely notice of the charges and assis-

* David S. Tanenhaus is Professor of History and James E. Rogers Professor of History and Law, William S. Boyd School of Law, University of Nevada, Las Vegas. Eric C. Nystrom is an assistant professor of history in the Interdisciplinary Humanities and Communication Faculty, College of Integrative Sciences and Arts, Arizona State University. They thank Jen- nifer Gross for her research assistance, and appreciate Frank Zimring, Winston Bowman, Rebecca Gill, and Michael Green’s timely suggestions and feedback. Finally, we are hon- ored to participate in this Symposium honoring the contributions of Barry Feld, Mary Berk- heiser, and the Thomas & Mack Juvenile Justice Clinic. 1 Letter from Chief Justice Earl Warren to Justice Abe Fortas (Mar. 17, 1967) (on file as part of the Abe Fortas Papers (MS 858), Manuscripts and Archives, Yale University Archives, Box 124). 2 BERNARD SCHWARTZ, SUPER CHIEF: EARL WARREN AND HIS SUPREME COURT—A JUDICIAL BIOGRAPHY 24 (1983). 3 Gault, 387 U.S. 1 (1967); DAVID S. TANENHAUS, THE CONSTITUTIONAL RIGHTS OF CHILDREN 82 (2011). 4 Id. at 6–8. 5 Id. at 29. 6 DAVID S. TANENHAUS, THE CONSTITUTIONAL RIGHTS OF CHILDREN 33 (2011). 7 Id. at xvii. 351 17 NEV.L.J. 351, TANENHAUS NYSTROM - FINAL.DOCX 4/5/17 11:04 AM

352 NEVADA LAW JOURNAL [Vol. 17:351 tance of counsel, Fortas wanted Gault to do much more.8 This included his ad- amant belief that Gault should extend the Fifth Amendment’s privilege against self-incrimination to children in juvenile court.9 Warren’s memo confirmed that Fortas had now secured enough votes to do so.10 As it turned out, Fortas was completing the Warren Court’s final great due process decision, which both jurists and academic lawyers have gone on to cite frequently.11 Fortas’s role during this revolutionary era for American constitutional law is remarkable.12 Only five years earlier, in 1962, the Supreme Court had asked Fortas, who was a prominent Washington lawyer, to represent Clarence Gideon in Gideon v. Wainwright (1963).13 His victory in Gideon made Gault not only possible but seemingly inevitable.14 The fact that Fortas successfully litigated Gideon in 1963, joined the high court two years later, and then wrote Gault in 1967, demonstrates that the basic assumptions about fundamental fairness had changed.15 Within four years, the Supreme Court had accepted that it would be unfair to try a person without the right of assistance of counsel in a case that could lead to punitive incarceration. Fortas successfully litigated this proposi- tion in Gideon,16 and then promulgated it as a justice in Gault.17 The Gault revolution, as law professor Martin Guggenheim explained, “created the need for thousands of lawyers to work in a previously nonexistent field.”18 This symposium commemorates the careers of two such outstanding lawyers: Barry C. Feld and Mary Berkheiser. Their scholarship and advocacy

8 Id. at 85. 9 Id. at 82. 10 Warren, supra note 1. 11 FRED P. GRAHAM, THE SELF-INFLICTED WOUND 9 (1970); Most-Cited U.S. Supreme Court Cases in HeinOnline – Part II, HEINONLINE BLOG, http://heinonline.blogspot.com/2009/01/ most-cited-us-supreme-court-cases-in.html [https://perma.cc/Y2BB-3SKE] (last visited Jan. 26, 2017). 12 See e.g., LAURA KALMAN, ABE FORTAS: A BIOGRAPHY 254–59 (1990). 13 372 U.S. 335 (1963). The Gideon decision, even though it applied only to the criminal justice system, turned out to be transformative for American juvenile justice. Gideon af- firmed that the state had to supply counsel to defendants who were charged with a felony and could not afford legal representation. The Supreme Court had to determine that this constitutional protection existed in state criminal courts before a litigant could successfully raise this issue regarding a client in juvenile court. Otherwise, a litigant would have been asking the Supreme Court to interpret the U.S. Constitution to include a procedural due process right in the juvenile court that was not constitutionally mandated for defendants in criminal court. Only after the Gideon decision in 1963 did it make sense to raise the constitutional question of whether juvenile courts also had to supply assistance of counsel to those who could not afford an attorney. The classic account of this case is ANTHONY LEWIS, GIDEON’S TRUMPET 48 (1964). For an empirical evaluation of Gideon’s significance see Sara Mayeux, What Gideon Did, 116 COLUM. L. REV. 15, 15 (2016). 14 TANENHAUS, supra note 6, at 65–66. 15 See Gideon, 372 U.S. at 335; see In re Gault, 387 U.S. 1, 3 (1967). 16 Gideon, 372 U.S. at 344. 17 Gault, 387 U.S. at 36–37. 18 MARTIN GUGGENHEIM, WHAT’S WRONG WITH CHILDREN’S RIGHTS, at i (2005). 17 NEV.L.J. 351, TANENHAUS NYSTROM - FINAL.DOCX 4/5/17 11:04 AM

Spring 2017] PURSUING GAULT 353 on behalf of children and their families have made a tangible difference at the local, state, and national level.19 Feld literally wrote the book on the right to counsel and juvenile courts, and Berkheiser’s research and advocacy remind us how this constitutional right is often more fictional than real.20 These Gault lawyers and their dedicated students have contributed to the fifty-year campaign, now championed by the National Juvenile Defender Center, to ensure that every child has the effective assistance of counsel in America’s juvenile courts.21 In this essay, we neither lament Gault’s “lost promise” nor treat it as a “period piece.”22 Instead, we use digital tools to investigate the uses of this frequently cited case over time. We begin with Fortas himself. Part I analyzes how he used Gault to argue for the importance of the privilege against self- incrimination. By doing so, he drew on contemporary, social-scientific research about the administration of juvenile justice and included broad statements about the foundation of constitutional freedom and the applicability of the privilege against self-incrimination in multiple contexts. In Part II, we use digital tools and citation records to trace what happened to these memorable parts of his decision (i.e., Fortas’s Gault) in the subsequent case law, and how these parts compare to other citations of Gault. In this section, we also use digital tools to search for potentially interesting patterns meriting further investigation. The conclusion notes that what remains of Gault is significant but largely confined to juvenile court. Yet, scholars may be able to use citations to the case to dis- cover valuable sites for exploring the legal history of American juvenile justice from Gault to the present.

I. FORTAS’S GAULT

Fortas’s biographer Laura Kalman observes that Gault best illustrated For- tas’s “personal approach to judging and his identification with those left out of society.”23 She highlighted Fortas’s 1969 address to the Juvenile Court Practice

19 Barry C. Feld, My Life in Crime: An Intellectual History of the Juvenile Court, 17 NEV. L.J. 299 (2017); Mary Berkheiser, Championing Children’s Rights in Nevada, 2000–2015: The Thomas & Mack Juvenile Justice Clinic as Change Agent, 17 NEV. L.J. 331 (2017). 20 See BARRY C. FELD, JUSTICE FOR CHILDREN: THE RIGHT TO COUNSEL AND JUVENILE COURTS (1993); Mary Berkheiser, The Fiction of Juvenile Right to Counsel: Waiver in the Juvenile Courts, 54 FLA. L. REV. 577, 581 (2002). 21 See The National Juvenile Defender Center’s Gault @ 50 Campaign, GAULT AT 50, https://gaultat50.org [https://perma.cc/6M2Q-QDM8] (last visited Jan. 26, 2017). 22 For an example of the “lost promise” framing, see Katherine R. Kruse, In re Gault and the Promise of Systematic Reform, 75 TENN L. REV. 385, 386 (2007). In Courts and Social Poli- cy, Donald Horowitz described Gault as a “period piece.” DONALD L. HOROWITZ, THE COURTS AND SOCIAL POLICY 172 (1977). 23 KALMAN, supra note 12, at 250. 17 NEV.L.J. 351, TANENHAUS NYSTROM - FINAL.DOCX 4/5/17 11:04 AM

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Institute, during which he spoke about juvenile offenders endogenously (i.e., as our children).24 He explained, “we’re talking about all children: our children: . . . White as well as Black, Middle class as well as poor—not just theirs.”25 Fortas cared about their future because he considered the juvenile justice system “the most appalling and dangerous part of the bankrupt estate of our national services.”26 Fortas, who was a legal realist, understood that due process alone could not fix systemic problems.27 Yet, as Kalman explained, “Introducing due process was still the largest contribution to improving the juvenile courts Fortas believed he could make as a judge.”28 Fortas had definite ideas in mind about just what the case and his opinion in it would mean. Accordingly, Fortas lobbied his fellow justices to secure as many procedural rights for children as possible—although what Fortas intended in Gault and how his colleagues and other interested par- ties read it sometimes proved wholly different.29 To explain why children needed the privilege against self-incrimination, Fortas circulated Justice William O. Douglas’s opinion in Haley v. Ohio (1948), which involved a fifteen-year-old African American accused of mur- der.30 The police had arrested him at midnight and questioned him in teams until he confessed at five o’clock in the morning.31 Douglas explained, What transpired would make us pause for careful inquiry if a mature man were involved. And when, as here, a mere child—an easy victim of the law—is before us, special care in scrutinizing the record must be used. Age 15 is a tender and difficult age for a boy of any race.32 He added, Mature men possibly might stand the ordeal from midnight to 5 a.m. But we cannot believe that a lad of tender years is a match for the police in such a con- test. . . . No lawyer stood guard to make sure that the police went so far and no farther, to see to it that they stopped short of the point where he became the victim of coercion. No counsel or friend was called during the critical hours of questioning.33 The Court held that the questioning at issue in Haley had violated the boy’s due process rights, although only by a 5-4 margin.34 But this case, and a later

24 Id. (citing Abe Fortas, “Beyond Gault: The Juvenile Offender” (Paper delivered to the Juvenile Court Practice Institute, Washington, D.C., Nov. 20, 1969)). 25 Id. 26 Id. 27 Id. at 249–50. 28 Id. at 250. 29 See TANENHAUS, supra note 6, at 82–85, 97–121. 30 332 U.S. 596, 597 (1948). 31 Id. at 598. 32 Id. at 599. 33 Id. at 599–600. 34 Id. at 596–97, 601. 17 NEV.L.J. 351, TANENHAUS NYSTROM - FINAL.DOCX 4/5/17 11:04 AM

Spring 2017] PURSUING GAULT 355 one (Gallegos v. Colorado),35 did not involve juvenile court proceedings. Both cases were criminal prosecutions of adolescents.36 Still, Fortas was able to secure the votes he needed in Gault to extend the privilege against self- incrimination into juvenile court.37 In his majority opinion in Gault, Fortas first explained the significance of due process for protecting the individual in modern society.38 This included Fortas’s declaration, “Due process of law is the primary and indispensable foundation of individual freedom. It is the basic and essential term in the social compact which defines the rights of the individual and delimits the powers which the state may exercise.”39 LexisNexis made this statement in Headnote 4 of its presentation of Gault.40 The breadth of Fortas’s statement about due process as a foundational constitutional principle suggests why jurists would be tempted to apply it broadly. Yet the most striking feature of this broad statement about the importance of due process is its legal realist grounding in social science, as evinced by the “big note”41 that supports it.42 As Fortas explained, “The impact of denying fundamental procedural due process to juveniles involved in ‘delinquency’ charges is dramatized by the following considerations. . . .”43 These considerations included: (1) the number of arrests of persons under the age of 18 for se- rious crime; (2) evidence for the benefit of providing assistance of counsel in New York, which had recently adopted this practice; (3) evidence that juveniles found “delinquent” were incarcerated in adult prisons in many states; (4) the danger of double jeopardy (i.e., a juvenile being prosecuted in juvenile and adult court for the same offense); and (5) evidence of juveniles being trans- ferred from juvenile to adult court.44 Fortas cited the most current research on the operations of American juvenile justice to support each conclusion.45 Thus, Fortas’s broadest statement about due process as a foundational, constitutional principle drew heavily upon social scientific findings about the administration of juvenile justice in the 1960s.46

35 Gallegos v. Colorado, 370 U.S. 49, 50 (1962). 36 Id.; Haley, 332 U.S. at 597. 37 In re Gault, 387 U.S. 1, 19 (1967). 38 Id. at 19–20. 39 Id. at 20. 40 In re Gault, 387 U.S. 1 (1967), LEXISNEXIS, http://www.advance.lexis.com [https://perma.cc/3D9G-A8HT] (search in search bar for “387 U.S. 1”) (last visited Jan. 27, 2017). 41 Gault, 387 U.S. at 20 n.26; David Tanenhaus (@david_tanenhaus), TWITTER (Sept. 16, 2016, 1:04 PM), https://twitter.com/david_tanenhaus/status/776874340050612224 [https://pe rma.cc/FWS7-TWK6]. 42 Gault, 387 U.S. at 20 n.26. 43 Id. 44 Id. 45 Id. 46 Id. 17 NEV.L.J. 351, TANENHAUS NYSTROM - FINAL.DOCX 4/5/17 11:04 AM

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Fortas also included a wide-ranging discussion of the significance of the privilege against self-incrimination, whose roots date back to at least the six- teenth century.47 As he explained, The privilege against self-incrimination is, of course, related to the question of the safeguards necessary to assure that admissions or confessions are reasonably trustworthy, that they are not the mere fruits of fear or coercion, but are re- liable expressions of the truth. The roots of the privilege are, however, far deeper. They tap the basic stream of religious and political principle because the privilege reflects the limits of the individual’s attornment to the state and—in a philosophical sense—insists upon the equality of the individual and the state. In other words, the privilege has a broader and deeper thrust than the rule which prevents the use of confessions which are the product of coercion because coercion is thought to carry with it the danger of unreliability. One of its purposes is to prevent the state, whether by force or by psychological domination, from overcoming the mind and will of the person under investigation and depriving him of the freedom to decide whether to assist the state in securing his convic- tion.48 He added, “It would indeed be surprising if the privilege against self- incrimination were available to hardened criminals but not to children.”49 This argument about the need to transplant a procedural safeguard from criminal justice into juvenile justice complemented his earlier declaration about due process as a foundational principle.50 It also helped him to make the related argument that children and adolescents actually required this privilege to protect them because they were more vulnerable than adults.51 This sentiment was ech- oed later in the twenty-first century, when the Supreme Court constitutionalized the idea that children are developmentally different from adults, and that dis- tinction matters, at least for sentencing purposes.52 Significantly, Fortas used his discussion of the privilege against self- incrimination to move from the realm of juvenile justice into other settings. He proclaimed, “The language of the Fifth Amendment, applicable to the States by operation of the Fourteenth Amendment, is unequivocal and without exception. And the scope of the privilege is comprehensive.”53 He noted, As Mr. Justice White, concurring, stated in Murphy v. Waterfront Commission, . . . “The privilege can be claimed in any proceeding, be it criminal or civil, administrative or judicial, investigatory or adjudicatory . . . it protects any disclo-

47 He traced this history in an earlier article, which he cited in Gault. Abe Fortas, The Fifth Amendment: Nemo Tenetur Prodere Seipsum, 25 CLEV. B. ASS’N J. 91, 96–104 (1954). 48 Gault, 387 U.S. at 47 (footnote omitted). 49 Id. 50 Id. at 20. 51 Id. at 48. 52 Miller v. Alabama, 132 S. Ct. 2455, 2464 (2012); Elizabeth S. Scott, “Children are Dif- ferent”: Constitutional Values and Justice Policy, 11 OHIO ST. J. CRIM. L. 71, 72 (2013). 53 Gault, 387 U.S. at 47. 17 NEV.L.J. 351, TANENHAUS NYSTROM - FINAL.DOCX 4/5/17 11:04 AM

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sures which the witness may reasonably apprehend could be used in a criminal prosecution or which could lead to other evidence that might be so used.”54 Fortas, therefore, had pieced together precedents to make his bold statement about the applicability of the privilege against self-incrimination in multiple contexts.55 In Part II below, we examine whether jurists used the condensed version of this statement (i.e., LexisNexis Headnote 11) in later cases.56 The bare text did not include the citation to Justice White’s concurring opinion.57 Instead, it simply stated: The privilege against self-incrimination can be claimed in any proceeding, be it criminal or civil, administrative or judicial, investigatory or adjudicatory. It protects any disclosures which the witness may reasonably apprehend could be used in a criminal prosecution or which could lead to other evidence that might be so used.58 Fortas’s majority opinion in Gault brought the due process revolution into juvenile court.59 Fortas was exceedingly proud of his Gault decision, and even mailed autographed copies to many of those involved in litigating the case and fighting for due process rights for children in juvenile court.60 But what we are calling Fortas’s Gault sought to do much more. It included both a broad statement about due process as the basis of constitutional freedom (Headnote 4),61 and a declaration that the privilege against self-incrimination should attach to any proceeding that could potentially lead to evidence that could be used against the individual in a criminal prosecution (Headnote 11).62 Neither of these statements were confined to juveniles alone. In Part II, we use digital tools to examine how jurists have cited Gault for nearly half a century, and whether Fortas’s Gault mattered in the long run.

II. CHASING GAULT

Tracing the route Fortas and the Warren Court took to the decision in Gault proved far more straightforward than understanding how jurists have applied Gault since 1967. More than 4,000 cases, at all levels of the American court

54 Id. at 47–48 (citation omitted). 55 Malloy v. Hogan, 378 U.S. 1, 6 (1964); McCarthy v. Arndstein, 266 U.S. 34, 40–42 (1924). 56 In re Gault, 387 U.S. 1 (1967), LEXISNEXIS, http://www.advance.lexis.com [https://perm a.cc/3D9G-A8HT] (search in search bar for “387 U.S. 1”) (last visited Jan. 27, 2017). 57 Id. 58 Id. 59 Gault, 387 U.S. at 50. 60 TANENHAUS, supra note 6, at 91–92. 61 See infra Table 2. 62 See infra Table 2. 17 NEV.L.J. 351, TANENHAUS NYSTROM - FINAL.DOCX 4/5/17 11:04 AM

358 NEVADA LAW JOURNAL [Vol. 17:351 system, have cited Gault–63 far too many to read one by one in a short span of time. Accordingly, we decided to use digital tools to aid our analysis of what the scholars Kellen Funk and Lincoln A. Mullen have classified a “medium data” scope.64 We leveraged two longstanding legal research tools to search for trace patterns in the usage of Gault over time. The first is Shepard’s Citations, a venerable legal research product that traces the citation of cases and whether those later citations uphold or call into question the earlier precedent.65 The se- cond is LexisNexis’s “headnote” annotations, which summarize and categorize the essential legal principles at the heart of each case.66 Both of these tools be- gan, and largely remain, products of highly trained human judgment.67 Once LexisNexis finished integrating headnotes with Shepard’s data in 2005, it be- gan to selectively provide information in a “Shepardized” report that indicated the cited case’s headnotes whose issues likewise were at stake in the citing case.68 Careful use of the Shepard’s data about citation, coupled with the Lex- isNexis headnotes (available for about 85 percent of citing cases), provided the opportunity to see broad trends in the usage of Gault from 1967 to mid-2016.69

63 As of September 16, 2016, Shepherd’s lists 4,226 cases that cited Gault, though a careful examination shows that a small number appear to be duplicate entries, and it is possible some cases have been missed in smaller jurisdictions. Unfortunately, LexisNexis does not seem to permit linking directly to an individual Shepard’s report. Our revised and corrected data is available in tabular form at ericnystrom.org/data/pursuing-gault [https://perma.cc/FJ9N-AWED] (last visited Jan. 27, 2017). 64 Kellen Funk & Lincoln A. Mullen, A Servile Copy: Text Reuse and Medium Data in American Civil Procedure, 24 RECHTSGESCHICHTE LEGAL HIST. 341, 342–43 (2016); Eric C. Nystrom & David S. Tanenhaus, The Future of Digital Legal History: No Magic, No Silver Bullets, 56 AM. J. LEGAL HIST. 150, 154 (2016). 65 Patti Ogden, “Mastering the Lawless Science of Our Law”: A Story of Legal Citation In- dexes, 85 LAW LIBR. J. 1, 33–36 (1993). 66 We have to date used only the Lexis/Shepard’s combination because of the significant effort needed to custom-build a program to parse this output reliably; however, it is reasonable to presume that competing tools, such as West’s KeyCite, could be employed in much the same fashion. For LexisNexis, see http://lexisnexis.com/hottopics/lnacademic/De fault.asp [https://perma.cc/2EBZ-LBTX] (last visited Jan. 27, 2017). See also William L. Taylor, Comparing KeyCite and Shepard’s for Completeness, Currency, and Accuracy, 92 LAW LIBR. J. 127, 128 (2000); Jane W. Morris, A Response to Taylor’s Comparison of Shep- ard’s and KeyCite, 92 LAW LIBR. J. 143, 143 (2000); Dan Dabney, Another Response to Tay- lor’s Comparison to KeyCite and Shepard’s, 92 LAW LIBR. J. 381, 381–85 (2000). 67 Susan Nevelow Mart, The Relevance of Results Generated by Human Indexing and Com- puter Algorithms: A Study of West’s Headnotes and Key Numbers and LexisNexis’s Head- notes and Topics, 102 LAW LIBR. J. 221, 221 (2010); Shawn Nevers, LexisNexis Headnotes, HUNTER’S QUERY (Sept. 18, 2009), http://huntersquery.byu.edu/wordpress/index.php/2009/ 09/lexisnexis_headnotes [https://perma.cc/HD5K-7LM3]. 68 Laura C. Dabney, Citators: Past, Present, and Future, 27 LEGAL REFERENCE SERVS. Q. 165, 179 (2008). 69 See James F. Spriggs II & Thomas G. Hansford, Measuring Legal Change: The Reliabil- ity and Validity of Shepard’s Citations, 53 POL. RES. Q. 327, 328 (2000). A key step was transforming this information into a format useful for verification and further analysis. We developed scripts to transform a downloaded Shepard’s report into tabular form, which served as a foundation for all further correction and analysis. Our scripts are available at 17 NEV.L.J. 351, TANENHAUS NYSTROM - FINAL.DOCX 4/5/17 11:04 AM

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TABLE 1: CASES CITING GAULT (DATA COMPILED FROM SHEPARD’S, SEPTEMBER 16, 2016, WITH CORRECTIONS BY AUTHORS)

Citing cases with one or more headnotes 3575 Citing cases, no headnotes given 611 Total cases citing Gault 4186

Fortas expected his Gault opinion to cover a lot of legal ground.70 Indeed, LexisNexis identified thirteen separate legal issues as “headnotes” in Lexis’s classifying system,71 incorporating an excerpt of the opinion’s text, and classifying each in a hierarchy of legal topics (Table 2). Eight of the headnotes refer specifically to juvenile justice, laying out important principles that, Fortas argued, ought to apply to adjudicatory hearings (i.e., the trial stage in juvenile court).72 Several of these principles, such as the one found in Headnote 10, explicitly compared juvenile and criminal court proceedings in order to highlight the procedural safeguards that were absent in juvenile court. Five other Head- notes (2, 4, 7, 11, 12), however, were not juvenile-specific, either because they restated general principles applicable to all individuals (such as Headnotes 4 and 11), or because they mentioned juveniles and adults as equivalent classes with equivalent rights (such as Headnotes 2 and 12).

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https://github.com/ericnystrom/sheptools [https://perma.cc/SFF6-V5W5] (last visited Jan. 29, 2017). 70 TANENHAUS, supra note 6, at 84. 71 See infra Table 2. 72 In re Gault, 387 U.S. 1, 13 (1967). 17 NEV.L.J. 351, TANENHAUS NYSTROM - FINAL.DOCX 4/5/17 11:04 AM

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TABLE 2: HEADNOTE-TOPICS REFERENCED BY GAULT CITERS; EACH CITING CASE MAY REFER TO MORE THAN ONE HEADNOTE, AND CITING CASES WITHOUT HEADNOTE DATA ARE NOT INCLUDED HERE (DATA COMPILED FROM SHEPARD’S, SEPTEMBER 16, 2016, WITH CORRECTIONS BY AUTHORS; SUMMARIES BY AUTHORS)

Headnote Cites Percent of Summary Total HN1 4 0.07 Specific reference to Arizona Rev. Stats on juveniles HN2 55 1.01 “Neither man nor child” can face trials without due process HN3 1547 28.51 Juveniles have long been treated differently from adults under the law HN4 34 0.63 Due process is “primary and indispensable foundation of individual freedom,” an essential part of the social compact HN5 438 8.07 Juvenile judges cannot exercise unlimited or arbi- trary power HN6 1563 28.81 Juvenile delinquency hearings must have due process and fair treatment, due to requirements of 14th Amendment HN7 263 4.85 Specific and timely notice of charges must be provided HN8 324 5.97 Juvenile hearings require notice sufficient for an adult trial HN9 139 2.56 Parents of a juvenile cannot be denied choice of counsel HN10 313 5.77 Assistance of counsel “equally essential” for juveniles HN11 159 2.93 Privilege against self-incrimination applies in any proceeding, to protect any disclosure that might lead to criminal charges HN12 520 9.58 The constitutional privilege against self- incrimination applies to both juveniles and adults HN13 67 1.23 Testimony in delinquency hearings subject to cross-examination

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FIGURE 1

An examination of the trends in headnote usage over time suggests some interesting patterns. It would be expected that the citation of Gault, like any other case, would begin strong, then decrease over time.73 Such a pattern would particularly make sense for Gault in light of its revolutionary potential to transform the administration of juvenile justice from a non-adversary to adversary system.74 What is curious, however, is the remarkable persistence of the relevance of Gault after the initial period, including some peaks of renewed activity, such as during 2010.75 The two headnotes most commonly invoked in cases that cited Gault suggest the landmark case’s clearest legacy and hint at a longstanding complication. The language of Headnote 6 built on language from the court’s earlier decision in Kent v. United States, which had been decided only on statutory grounds, makes it clear that juvenile delinquency adjudica- tions must include baseline Fourteenth Amendment standards for due process and fair treatment.76 In Fortas’s memorable words, “Under our Constitution, the condition of being a boy does not justify a kangaroo court.”77 Gault is best re- membered for constitutionalizing this point, and this issue brought juvenile jus-

73 Ryan C. Black & James F. Spriggs II, The Citation and Depreciation of U.S. Supreme Court Precedent, 10 J. EMPIRICAL LEGAL STUD. 325, 342 (2013). 74 B. JAMES GEORGE, GAULT AND THE JUVENILE COURT REVOLUTION (1968). 75 See supra Figure 1; see also our compiled and corrected Shepard’s citation data for Gault, supra note 63. 76 Kent v. United States, 383 U.S. 541, 562 (1966). 77 Gault, 387 U.S. at 28. 17 NEV.L.J. 351, TANENHAUS NYSTROM - FINAL.DOCX 4/5/17 11:04 AM

362 NEVADA LAW JOURNAL [Vol. 17:351 tice under the umbrella of the Warren Court’s “due process revolution.”78 Headnote 3, by contrast, acknowledges there are fundamental differences between juvenile and criminal courts, which explains partly why states created dual systems to try the cases of adolescents accused of committing crimes.79 The Burger Court later emphasized these differences in McKeiver v. Pennsyl- vania (1971), a 5-4 decision holding that the Constitution does not require jury trials in juvenile court.80 Other headnotes, which we described in Part I as For- tas’s Gault, suggested a wider potential application of Gault outside the realm of juvenile justice.81 Headnotes 4 and 11, which are concerned with due process and self-incrimination, respectively, embody principles that need not be tied directly to the adjudication of children. These two headnotes, however, represent only a fraction of the overall cites (0.63 percent and 2.93 percent, respectively). Thus, Fortas’s Gault largely faded away. FIGURE 2

It is also significant to emphasize that the primary usage of Gault takes place in courts below the level of the U.S. Supreme Court. Of the nearly 4,200

78 TANENHAUS, supra note 6, at xv. 79 The creation of the juvenile court at the turn of the twentieth century produced a dual system for handling the cases of minors in the United States. This meant that children could have their cases tried in either juvenile or criminal court. In his background paper for the Twentieth Century Fund Task Force on Sentencing Policy Toward Young Offenders pub- lished in Confronting Youth Crime, Franklin E. Zimring included a chapter titled “Our Dual System of Justice for Young Offenders” to describe this structural arrangement. FRANKIN E. ZIMRING, CONFRONTING YOUTH CRIME 45–64 (1978). 80 403 U.S. 528, 545 (1971). In his contribution to this Symposium, Feld calls for the Su- preme Court to revisit McKeiver; see Feld, supra note 19, at 324. 81 See supra Part I. 17 NEV.L.J. 351, TANENHAUS NYSTROM - FINAL.DOCX 4/5/17 11:04 AM

Spring 2017] PURSUING GAULT 363 cases that have cited Gault, fewer than seventy have been in the U.S. Supreme Court.82 Those Supreme Court cases also include many justices citing Gault in dissent, such as Justice William O. Douglas in McKeiver v. Pennsylvania,83 and Justice Thurgood Marshall in Schall v. Martin.84 These citations suggest that different justices read and used Gault for competing purposes, especially between 1968 and 1986 (Figure 2). Moreover, since 1987 Gault has been cited infrequently at best by the U.S. Supreme Court (Figure 3). FIGURE 3

Our analysis shows that state courts are overwhelmingly the arena in which Gault is deployed—more than three-quarters of the cases citing Gault were heard at the state level, if state supreme and lower courts are taken together.85 While Gault has enjoyed national notoriety since the decision was an- nounced, Figure 3 suggests that the primary battle to realize the mandates and potential of Gault has taken place in venues that often escape the notice of academic lawyers and legal historians searching for national stories. One example is the state of Arkansas, where the environment of due process for juveniles created by Gault eventually led to the Arkansas Supreme Court invalidating the state’s antiquated pre-Gault juvenile justice system.86 With this decision, the Arkansas Supreme Court forced the state’s legislature to create a modern juvenile justice system, yet none of this activity took place in the federal court system.87 The example of Arkansas suggests why it is necessary to examine national-scale stories at sub-national levels, such as the state courts. Digital tools and source analysis can point legal historians to these promising sub-national sites for further investigation with more traditional methods, and assist legal

82 See infra Figure 3; data also available in tabular form, supra note 63. 83 McKeiver, 403 U.S.at 557–59. 84 Schall v. Martin, 467 U.S. 253, 288 (1984). 85 See supra Figure 3. For specifics, see our revised and corrected data (based on Shepard’s initially), available in tabular form, supra note 63. 86 Walker v. Ark. Dep’t of Human Servs., 722 S.W.2d 558, 562 (Ark. 1987). 87 David S. Tanenhaus & Eric C. Nystrom, “Let’s Change the Law”: Arkansas and the Puz- zle of Juvenile Justice Reform in the 1990s, 34 LAW & HIST. REV. 957, 959 (2016). 17 NEV.L.J. 351, TANENHAUS NYSTROM - FINAL.DOCX 4/5/17 11:04 AM

364 NEVADA LAW JOURNAL [Vol. 17:351 historians by helping arrange and manipulate data to permit analysis at scales impractical otherwise.

FIGURE 4 FIGURE 5

When considering an opinion as expansive as Gault, it might be reasonable to think that different components of the opinion were used differently depending on the venue. While finer divisions might yield significant distinctions, the consideration of only those cases citing Gault that used one of the two most commonly cited headnotes (Headnote 3 states that juveniles had long been treated differently in courts; Headnote 6 declares that juveniles are entitled to due process protections) is revealing. It shows patterns of citation across jurisdiction groupings that seem remarkably similar to those for all citing cases, re- gardless of headnote, as demonstrated in Figures 4 and 5.

FIGURE 6 FIGURE 7

A similar examination of Headnotes 4 and 11, two of the widest-ranging headnotes that do not specifically mention juveniles, and invoke broad protections for due process and against self-incrimination in any proceeding, suggests, by contrast, that differences in usage depending on jurisdiction might be detectable. (Figures 6 and 7.) While the total numbers of citations are much 17 NEV.L.J. 351, TANENHAUS NYSTROM - FINAL.DOCX 4/5/17 11:04 AM

Spring 2017] PURSUING GAULT 365 smaller, and substantial caution must be used in interpreting any results, it is interesting that Headnote 4 seemed to have a slightly higher usage in state supreme courts when compared with overall averages, and Headnote 11 seems to have been particularly useful to state courts.88

FIGURE 8

A look at the citations of Gault by jurisdiction graphed over time suggests some other possible sites for future investigation. Adjusting the data to show the proportion of citations in each jurisdiction per year, as seen in Figure 8, cor- rects for declining citations as the Gault decision aged (as can be seen in Figure 1), and puts in yearly perspective the summary embodied in the pie chart in Figure 3. This chart seems to show a pattern of “implementation” in the decade or two after Gault was decided. In such a period, the role played by the state supreme courts (the band of medium gray in the graph) was a larger proportion of the uses of Gault; in later years, lower state courts absorbed a greater proportion of Gault use, perhaps as implementation gave way to enforcement. Such an “implementation” explanation then becomes complicated. The graph shows a surge of federal courts using Gault, beginning from a low point around 2003 and continuing each year until the end of the dataset. But the U.S. Supreme Court does not seem to have mirrored this uptick. Investigating this surge might be a promising direction for future research. The graph similarly might point to other potentially interesting phenomena, such as a spike in federal court usage in 1994 (in the heart of the “Get Tough” era of juvenile justice),89 a similar spike in state supreme court references in 2004, and years of

88 See supra Figures 6 and 7 (showing headnotes 4 and 11, respectively). 89 See Nystrom & Tanenhaus, supra note 64, at 151. 17 NEV.L.J. 351, TANENHAUS NYSTROM - FINAL.DOCX 4/5/17 11:04 AM

366 NEVADA LAW JOURNAL [Vol. 17:351 relatively little overall use by higher or federal courts, such as 1997–98 and 2002–03. The data about cases citing Gault, and particularly the notation of specific headnotes, which might stand in as proxies for their topics, can help us analyze other ideas about the juvenile justice system. For example, scholars such as Franklin Zimring have argued that scholars and policymakers should consider juvenile and criminal courts to be part of a “dual system.”90

FIGURE 9

We divided the headnotes into two categories to test Zimring’s insights about the dual system. Headnotes 2, 3, 4, 5, 7, 8, 11, and 12 all address due process matters across the whole dual system (and perhaps beyond). On the other hand, Headnotes 1, 6, 9, 10, and 13 specifically focus within the juvenile justice system.91 Headnote 5, which we include here in the “dual system” cate- gory, is based on Kent92 and is the most explicit acknowledgement of the bor- der between the two courts in the dual system (i.e., inter-court transfer) and the consequences of moving from one system to the other. Divided in this way, over 61 percent of the uses of Gault headnotes show a dual system use.93

90 Zimring, supra note 79. 91 Headnote 1 is somewhat of an outlier because it cites the Arizona legislation, but since it is so infrequently cited by other cases, it does not have much impact on the eventual results. 92 Kent v. United States, 383 U.S. 541, 554–56 (1966). 93 The numbers here represent individual invocations of headnotes by cases citing Gault. Cases citing Gault that do not have headnotes specified are not represented in these numbers, and if a case uses multiple headnotes, it is counted once for each of them. 17 NEV.L.J. 351, TANENHAUS NYSTROM - FINAL.DOCX 4/5/17 11:04 AM

Spring 2017] PURSUING GAULT 367

FIGURE 10 FIGURE 11

Grouping headnotes and using them as proxies for distant reading of opin- ions citing Gault gives us an opportunity to more fully flesh out the dual system of justice in light of court levels, change over time, and regional/geographic variations. There seems to be little difference in the usage rate by the various types of courts between the dual system cites and those specific only to juvenile courts. Indeed, the proportions shown above seem close to those for cases citing Gault generally.

FIGURE 12

When placed in chronological context, however, a slightly different pattern seems to emerge. While overall citations of Gault (and thus headnote-cites grouped together here) declined over time until a resurgence in the last decade or so, the graph above suggests that headnote-citations representing the dual 17 NEV.L.J. 351, TANENHAUS NYSTROM - FINAL.DOCX 4/5/17 11:04 AM

368 NEVADA LAW JOURNAL [Vol. 17:351 system have become slightly more prevalent as the legacy and meaning of Gault evolves. We can dig down further to see if regional patterns can emerge from the headnote-cite data. If courts from the state level through federal appellate courts are grouped together by their controlling federal circuit level, we might be able to see some regional variation in the treatment and usage of citations of Gault.

TABLE 3: GAULT HEADNOTE-CITES REFLECTING DUAL SYSTEM OR JUVENILE-ONLY APPROACHES, GROUPED BY CONTROLLING CIRCUIT (DATA COMPILED FROM SHEPARD’S, SEPT. 16, 2016, WITH CORRECTIONS BY AUTHORS)

Controlling Circuit Dual System HN Juvenile-only HN Percent Dual

DC 72 24 75.0

National 70 33 67.96

3rd 259 139 65.08

10th 201 108 65.05

6th 519 299 63.45

8th 243 141 63.28

1st 88 53 62.41

TOTAL 3340 2041 62.07

11th 142 87 62.01

7th 314 198 61.33

5th 284 184 60.68

2nd 347 230 60.14

9th 604 407 59.74

4th 197 138 58.81

To adjust for differing sizes and rates of activity in each circuit’s controlled geography, we have considered the percentage of each controlling circuit’s headnote-cites that represent a dual system understanding (rather than raw numbers of cites). The table above suggests that there might be regionally vari- able phenomena relating to the citation of Gault that could be explored further in future work. 17 NEV.L.J. 351, TANENHAUS NYSTROM - FINAL.DOCX 4/5/17 11:04 AM

Spring 2017] PURSUING GAULT 369

FIGURE 13

A closer look at these breakdowns over time, however, complicates easy stories of regional variation. The graph above compares the two extremes of the circuit groupings (if the national circuit groups are excluded). When viewed through time, it is clear in the graph above that variation is an essential part of the story. Courts that are under the Fourth Circuit’s southern coastal jurisdiction had a percentage of headnote-cites that reflected the “dual system” that varied tremendously over time. Despite having the lowest overall average percentage reflecting a “dual system” understanding, in some years 100 percent of the Fourth Circuit-area’s courts’ headnote-cites reflected a “dual system” approach. Though such a graph can merely be suggestive, further research might investigate rapid changes in direction, substantial differences between controlling circuit areas in times of rapid change or substantial activity, or other phenomena. Clearly, these digital tools can be tremendously valuable in raising— and occasionally helping to answer—fresh questions about the use of important cases, even those as venerable and contested as In re Gault.94

CONCLUSION

As this article has argued, Abe Fortas played a remarkable role during the 1960s in litigating, and then promulgating the principle that trying a person without the right of assistance of counsel in a case that could lead to punitive incarceration is fundamentally unfair and unconstitutional. Moreover, he used Gault to argue for attaching the privilege against self-incrimination in “any proceeding, be it criminal or civil, administrative or judicial, investigatory or adjudicatory” because “it protects any disclosures which the witness may rea-

94 In re Gault, 387 U.S. 1, 43–44 (1967). 17 NEV.L.J. 351, TANENHAUS NYSTROM - FINAL.DOCX 4/5/17 11:04 AM

370 NEVADA LAW JOURNAL [Vol. 17:351 sonably apprehend could be used in a criminal prosecution or which could lead to other evidence that might be so used.”95 Although some jurists continue to cite this part of Gault (i.e., Fortas’s Gault),96 the impact of Gault in non- juvenile justice contexts appears negligible. Instead, Gault’s enduring significance remains in the field of juvenile justice. The prominent role of Gault, for example, in Feld’s and Berkheiser’s essays97 (and careers) reflects the enduring significance of this landmark decision for the pursuit of juvenile justice. Chasing Gault’s citations can help scholars to better understand the history of American juvenile justice. Behind every citation and case is a legal history that includes children’s advocates such as Feld and Berkheiser. By using digital tools, scholars can locate patterns of citations that may lead to promising sites for further investigation. Such research can help us to understand the significance of federal and state courts during the so-called “Get Tough Era”98 in American juvenile justice during the 1980s and 1990s. This history, in turn, can help advocates in making critical decisions about whether litigation or legislation is a more promising avenue for juvenile justice reform. Finally, as this article has shown, Gault’s citation patterns demonstrate that since 1967, courts at all levels have explicitly recognized that juvenile and criminal courts are part of a dual system used to try the cases of juvenile offenders. How these patterns unfolded in the past is a history worth knowing, especially for those pursuing justice for juveniles in the twenty-first century.

95 Id. at 47–48. 96 See supra Part I. 97 See Feld, supra note 19; Berkheiser, supra note 19. 98 Feld, supra note 19, at 299.